Fishing association did not have standing to advance argument that Minister of Fisheries and Oceans breached its constitutional duty to consult with Indigenous stakeholders before making decision to geographically divide a lobster fishing area in Atlantic Ocean

Administrative law – Decisions reviewed – Minister of Fisheries and Oceans – Judicial review – Procedural requirements and fairness – Standard of review – Reasonableness – Fisheries – Licences – Permits – Aboriginal issues – Government’s duty to consult

Grand Manan Fishermens Assn., Inc. v. Canada (Attorney General), [2023] F.C.J. No. 1514, 2023 FC 1418, Federal Court, October 25, 2023, R.F. Southcott J.

Certain lobster fishing areas (LFAs) in the Atlantic Ocean are identified and regulated under the Atlantic Fisheries Regulations enacted under the Fisheries Act. They are divided into different geographic areas with certain license holders being approved to fish in certain LFAs. For decades, fishers licensed for LFA 36 and LFA 38 were also considered licensed to fish in LFA 37. There were no licenses issued solely for LFA 37. License holders in LFAs 36 and 38 were in ongoing disagreement as to how their shared access to LFA 37 should work and there were concerns about equitable access between the two groups. Following consultations with the organizations representing both groups, as well as some consultation with local Indigenous groups (two First Nations in the area either already had access to lobster fishing in LFA 37 or were thought to potentially have such access in the future; neither Nation was a party to the application), the Department of Fisheries and Oceans (DFO) decided, on an interim basis for the 2022-2023 lobster fishing season, to divide LFA 37 into two geographic areas with one to be accessed by LFA 36 license holders and the other by FLA 38 license holders. The decision was considered interim pending completion of further consultations with Indigenous communities. The division of LFA 37 did not apply to Indigenous communal commercial licenses.

The organization representing the interests of license holders in LFA 38 sought judicial review of the DFO’s decision, arguing that it was not afforded appropriate procedural fairness, that the decision was unreasonable, and that the DFO/Minister of Fisheries and Oceans breached its constitutional duty to consult with Indigenous stakeholders which rendered the decision invalid. Notwithstanding that the decision did not change the access to LFA 37 afforded to Indigenous communal commercial licenses, the applicant sought to invoke s. 35(1) of the Constitution Act, 1982 and s. 2.4 of the Fisheries Act in support of an argument that the decision was invalid because it was made before the Minister had completed consultations with First Nations communities holding those licenses. The respondent, the AG, argued that the applicant did not have standing to raise that argument under those statutes. The court agreed.

The court also rejected the applicant’s argument that it was not afforded appropriate procedural fairness because it was consulted earlier on in the process but was not given an opportunity to comment on the final consultative report that would inform the DFO’s decision or the proposed division of LFA 37 that was being recommended. The court also found no basis on which to consider the DFO’s decision unreasonable. The application for judicial review was dismissed with costs ordered to the respondent.

This case was digested by Kara Hill, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Kara Hill at khill@harpergrey.com.

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